Williams v. Garbutt Lumber Co.

• Decision Date: 26 February 1909
• Citation: Williams v. Garbutt Lumber Co., 132 Ga. 221, 64 S.E. 65 (Ga. 1909)
• Parties: WILLIAMS v. GARBUTT LUMBER CO.
• Court: Georgia Supreme Court

64 S.E. 65

132 Ga. 221

WILLIAMS v. GARBUTT LUMBER CO.

Supreme Court of Georgia

February 26, 1909

Syllabus by the Court.

In a suit by a servant against a master for a personal injury resulting from a log which was being loaded on a tram car slipping and rolling against him, the petition alleged in substance as follows: The injury resulted from the condition of a cant hook which was being used by a fellow servant, and which was so worn at the point of the hook and at the place where it joined the handle that it would not hold the log. Plaintiff was without fault, and he was not injured by any negligence of his fellow servant, but by reason of negligence of the master in furnishing a defective and unsafe cant hook to the fellow servant of plaintiff, and in not inspecting it. The plaintiff and his fellow servant were principally engaged in cutting logs, and were called to assist in loading only when necessary. The cant hooks were all carried on the log train and kept there or at the mill, at a distance of several miles from the place where the plaintiff and his fellow servant were cutting logs. They were engaged in a different department of the work from that to which was intrusted the furnishing and taking care of cant hooks. The defect could only be discovered by inspection. The hook was not regularly used by or kept in the custody of the fellow servant. Neither the plaintiff nor the fellow servant knew of the defective condition of the tool, and they had no opportunity to know of it, as they would be called to where the cant hooks were, and would take any hook accessible, and immediately proceed to loading logs, having neither time nor opportunity or inspection. The fellow servant was only 16 years of age, and had not reached such years of discretion as to be trusted with such a tool, unless it had been inspected or he had been warned of the danger. The master knew, or by the exercise of ordinary care ought to have known, of the unsafe condition of the tool. Held, that the petition was not subject to general demurrer.

[Ed Note.-For other cases, see Master and Servant, Cent. Dig. §§ 809, 837, 849; Dec. Dig. §§ 256, 259, 261. ^[*]]

The other grounds of the demurrer did not authorized the dismissal of the case.

[Ed Note.-For other cases, see Master and Servant, Cent. Dig. §§ 171, 180, 235; Dec. Dig. " 101, 124. ^[*]]

Error from Superior Court, Ben Hill County; W. V. Whipple, Judge.

Personal injury action by S. P. Williams against the Garbutt Lumber Company. Judgment for defendant sustaining a demurrer to the amended petition, and plaintiff brings error. Reversed.

S. P Williams brought suit against the Garbutt Lumber Company alleging, in substance, as follows: On March 23, 1906, the plaintiff was in the employment of the defendant, his duties being to cut logs which were to be used at the sawmill of defendant, and which it was customary to transport by hauling them to the defendant company's tram road, and loading them on trucks which were drawn by a steam engine. The loading of the logs would sometimes require the work of more men than were engaged on the cars or trucks, and it was a part of the plaintiff's duties, whenever called upon to do so, to leave his business of sawing logs, and assist in loading them for transportation. He was subject to the orders of the woodman of the defendant in this respect. The usual method employed for getting the logs on the trucks was this: The logs would be hauled up and placed upon skids, and, when ready to be loaded upon trucks, laborers would slide or push the logs along these skids on what were called "jumpers," which were other logs or timber running from the skids in an inclined direction upward to about the level of the top of the trucks. A long chain would be put around the logs, and mules would be hitched to it, and by driving the mules forward the logs would be pulled up the inclined plane and carried upon the trucks of the logging train. While they were thus being loaded, it was necessary that the logs should be handled by laborers using "cant hooks" for the purpose of turning them, holding them in proper position, and otherwise working with them to get them upon the trucks. On the date named the plaintiff and other laborers were called to assist in loading logs in the manner mentioned. They proceeded to do the loading in the usual way. Nick Williams, who was a laborer of the same kind as the plaintiff and engaged in the same work, was assisting in carrying the logs up the "jumpers" in the manner described. Plaintiff, having aided him in getting the logs started up the "jumpers" toward the trucks, turned for the purpose of starting the next log, as was necessary and proper to be done, in order to load the logs quickly, as it was their duty to do. Nick Williams placed the cant hook which he had under one end of the log which was then on its way up the "jumpers," for the purpose of keeping it from slipping back. This was the proper way to do in carrying out that work. The cant hook which Nick Williams was using was defective; the wooden part of it being so badly worn that the metal hook would not hold properly. By reason of such defective condition the pressure of the log upon the cant hook caused it to slip out of place and fail to hold the log as it should have done, and would have done save for the defendant. This caused the log to slip or roll down the "jumper," near which the plaintiff was standing, engaged in his duty of bringing forward the next log. The log thus sliding or rolling struck the plaintiff on the leg, breaking it and causing a serious injury (which was described). It was the duty of the defendant to furnish to its laborers safe tools and appliances for their work, and it was negligent in furnishing a defective cant hook for that purpose. This duty rested upon the defendant corporation, and the failure to discharge it was not due to any fault on the part of the plaintiff or any fellow servant. Plaintiff was not negligent, but used all reasonable care and diligence in the performance of his duty, and the injury was not due to the negligence of any fellow servant.

By amendment, it was alleged, in substance, as follows: The cant hook used by Nick Williams had become from long use somewhat worn at the point, and was not sharp enough to catch and hold the log upon which it was being used. The defects in it as set out here and in the original petition were not perceptible unless closely examined, and, it being kept in the custody of the Garbutt Lumber Company, and not being regularly used or kept by Nick Williams, he had no occasion to inspect or examine it carefully. In fact, he did not do so, but took it and proceeded immediately to use it, relying upon it, thus furnished to him, as being in proper and safe condition for the work to be done. At the time of the injury to the plaintiff Nick Williams was a boy about 16 years of age, and, while physically able to perform the portion of the work expected of him, he had not reached the age of discretion and judgment at which it was proper to intrust him with the use of such a tool as a cant hook, unless it was carefully examined and inspected by the Garbutt Lumber Company or its agent employed for that purpose to see that the cant hook was a safe one for the work to be done with it; or unless the attention of Nick Williams was specially called to the danger of handling and using a cant hook that might not be in a perfect condition. The cant hooks used by the laborers were all carried on the logging train of the defendant, and were kept there at the mill, at a distance of several miles from the point where the plaintiff and Nick Williams were engaged in cutting logs. Nick Williams and the plaintiff were engaged in an entirely different department of work from that to which was intrusted the furnishing and taking care of the cant hooks. Nick Williams did not know of the defective condition of the cant hook used by him, nor did the plaintiff. When it became necessary to load the logging train, the plaintiff, Nick Williams, and other laborers, would leave their axes with which they were cutting logs and go to the logging train, where each laborer would take for his use any cant hook accessible; no particular one being assigned to any laborer. Immediately upon taking up the cant hooks, the plaintiff and other laborers would load the logs as they did on this occasion. Therefore they had no time or opportunity to inspect the cant hooks. Neither the plaintiff nor Nick Williams had a reasonable opportunity to know of the unsafe condition of the cant hook; but the Garbutt Lumber Company did have knowledge of its unsafe condition, or ought to have had by the exercise of ordinary diligence.

The defendant demurred to the petition as amended, the court sustained the demurrer, and the plaintiff excepted.

Haygood & Cutts, for plaintiff in error.

Hal Lawson, for defendant in error.

LUMPKIN J.

The general rule requires a master to use ordinary diligence to furnish his servant with appliances reasonably suited for the use for which they are intended, and to use like diligence in inspecting and keeping them in proper condition for use. To this general rule some courts of other states have declared that there exists what has been denominated an exception as to "simple tools." The basis on which this has been placed by some of the courts is that where a tool or instrumentality is so entirely simple in its nature and character that its condition can be seen at a glance, or that one who uses it has as good an opportunity as the master for knowing its condition, the servant cannot recover on the ground that the master did not inspect it. In some of the decisions there is a broad announcement that the master is under no duty to inspect...